建筑物区分所有权之业主共有权研究

1、建筑物区分所有权之业主共有权研究 摘 要建筑物区分所有权作为现代民法一项重要的不动产所有权形式,目前已被世界各国的民事立法所普遍确立,并成为现代社会人们区分建筑物所有的最重要的法律制度。建筑物区分所有权由专有权、共有权和成员权构成,其中共有权是建筑物区分所有权的共同性灵魂,是构成建筑物区分所有权整个复合性权利的不可或缺的重要组成部分。而我国至今为止,在现有的法律体系中,并未真正建立起一套完整的建筑物区分所有权制度,对其共有权的规制更是十分欠缺。本文试图从现代建筑物区分所有权入手,对其共有权的相关问题逐一分析,并就完善和建立我国建筑物区分所有权共有权的相关法律制度提出自己的见解。 本文认为,为保证所有权体系的完整、一致性,将成员权单独列为一项独立权利并无必要。建筑物区分所有权的涵义应当采用“二元论说”,即建筑物区分所有权是指区分所有人对建筑物的专有部分和共有部分所享有的专有权和共有权的结合。建筑物区分所有权之共有权系指建筑物区分所有权人依照法律或管理规约之规定,对区分所有建筑物之共有部分所享有的占有、使用、收益及受一定限制的处分权利。共有权作为一种复合性的权利,区别于一般的共有权。 界定

2、共用部分的范围是建立建筑物区分所有权制度的主要内容之一,界定共用部分主要有以下方法:排除法、列举法、排除与列举相结合等界定等方法。对于建筑物区分所有权的共有权内容的界定,是根据权利与义务对等的原则,从所有权人对共有部分所享有的权利和应承担的义务进行分析,明确了共有权人的权利为使用权、受益权、修缮改良权、物上请求权、以及处分权。共有权人在享有权利的同时,也要承担相应的义务。区分所有人实施违反其作为共有权人的义务的行为时,依法应承担相应的法律后果。 当前物业纠纷多集中于有关共有权方面的问题,保护共有权的前提是共有权人应当严格按照共有权的行使原则和行使方式来进行权利实施。根据实践中常见的问题如楼顶和楼梯公用的问题、小区停车位权属的问题、自行在阳台外和窗外安设防盗栅栏和晾衣架的行为等,本文均进行详细的案例分析,结合现有实际,提出共有权的保护对策?构建建筑物区分所有权中共有权保护制度,即:完善与物权法配套的相关法律制度,包括建立和完善物业小区与共用部分的统一登记制度、完善物业小区的移交制度,实现从开发商控制到业主控制的顺利过渡、建立和完善住户侵害物业小区中共有权的民事责任体系、确立业主委员会的职

3、能和诉讼地位;完善物业小区的内部管理制度,包括完善物业小区的管理规约、建立和完善物业小区的管理组织制度等等。关键词:建筑物区分所有权 共有权 共有权保护1 AbstractOwnership of the building as a modern civil law to distinguish an important form of real estate ownership has been around the world generally established by civil legislation, and become a modern society, people distinguish between the most important buildings in all of the legal system. Distinction between ownership of the building from the exclusive right of members of the right and the right composition, whi

4、ch is building a total distinction between the right of common ownership of the soul, constitute the entire complex of buildings of distinction between the rights of ownership of an important part. In China, so far, in the existing legal system, has not really set up to distinguish between a complete set of building ownership of the system have the right to their total of regulation is lacking. This paper attempts to distinguish ownership from the start of modern buildings, its total of the righ

5、t to analyze the relevant issues and to improve the distinction between the building and the establishment of Chinas total ownership of the relevant legal system have the right to put forward own viewsFirst, the distinction between ownership of the building and were entitled to an overview of the theory. This article holds that title in order to ensure system integrity and consistency, as will members of the right to separate the right to an independent not necessary. The meaning of the distinct

6、ion between ownership of the building should be dual discourse, that is, the distinction between ownership of the building refers to the distinction between the exclusive owner of the building and there were some parts of the exclusive rights enjoyed by the right combination and a total. Distinction between ownership of the building means the building of a total distinction between the right of ownership or management in accordance with the law were the provisions of the Statute, on the distinct

7、ion between the total of all buildings enjoy some possession, use, income and subject to certain restrictions on the rights of action. Were entitled to as a composite of the rights of the total from the right in generalSecond, a brief analysis of the distinction between ownership of the main building, and then based on exclusion, citing law, rule out the possibility of combining with the listed methods, such as we look to define the rest of the world and our country has the right to object on th

8、e scope of the definition, to define the scope of common parts is to establish building ownership of the system to distinguish between one of the main contents 2 Then, for a total ownership of the buildings have the right to distinguish between the contents of the definition of rights and obligations in accordance with the principle of reciprocity, from a total of some ownership of the rights and obligations of the analysis, defined the rights of persons were entitled to use rights, benefits, re

9、pairs to improve the right to request material on the right, as well as the disposition. Were entitled to the enjoyment of the rights of people, we must also undertake corresponding obligations. All of the implementation of the distinction between its role as a total breach of the obligation of the right to act, in accordance with the law should bear the corresponding legal consequencesFinally, the current focus on property-related disputes were the right issues, were entitled to the protection of the premise that the total should be in strict accordance with the right people have the right to exercise a total of principles and the exercise of the right way to implement. In accordance with common practice issues, such as the roof and the issue of communal staircase, residential parking spaces in the issue o

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